The Government has opposed the International Criminal Court (ICC) Prosecutor Fatou Bensouda’s request to access President Uhuru Kenyatta’s and Deputy President William Ruto’s financial records and assets, terming the request untenable. Bensouda first made her application in a letter dated April 24, 2012 that she sent to the government requesting for assistance in getting financial and other records as well as freezing of assets of the then four accused, namely Uhuru, Ruto and his co-accused Joshua arap Sang and the former Head of Civil Service, Francis Muthaura, whose charges have since been dropped.
Bensouda renewed her demands in April, this year. However, in the response dated December 20, 2013, the Government has stated that the Banking Act prohibits the Central Bank of Kenya from publishing information that discloses financial affairs of any person unless the consent of that person has been provided in writing.
The prosecution had also sought the Government’s assistance in having the Capital Markets Authority (CMA) identify any links between the individuals and share dealings or investment banking since June, 2007. Bensouda had claimed the government had blocked the ICC from accessing wealth declarations of the suspects, freezing their accounts and reports of the National Intelligence Service at the time of the post-election violence.
She had also stated she was ready to seek the assistance of foreign countries and agencies to gain access to the witnesses and evidence. But under Section 13 of the CMA Act, the Authority cannot provide the information requested by the prosecution without a court order directed to the Government.
The prosecution also requested the Government to transmit records it holds in accordance with the Public Officers Ethics Act pertaining to the accused persons, relating to declaration of income, assets and liabilities. The ICC Prosecutor had filed an application seeking the court’s intervention in relation to the request for financial and other information, alleging that the Government had failed to co-operate with the prosecution in providing the same.
But the Government submits that the requests made by the prosecution are untenable as they are in violation of the Rome Statute, Rules of Procedure and Evidence and in disregard of the International Crimes Act No. 16 of 2008, which reasons were made available at the earliest possible opportunity.
In a 21-page document to the Trial Chamber V(b), Attorney General Githu Muigai termed the Prosecution’s application unsustainable because consultations between State Parties and the Court in Article 93(3) of the Statute to resolve the matter on measures of assistance have not been initiated and concluded for the prosecution to conclude that the Government is non-compliant.
The A-G stated, at no particular time did the prosecution furnish the Government of Kenya with a request from the ICC setting out the request for assistance. “Since the opportunity has now presented itself, the Government is initiating its consultations at this moment and should the court find there exists a dispute by the prosecution in their request letter, then the court should direct that consultations should commence, but not referral of Kenya’s alleged non-compliance to the Assembly of State Parties as sought by the prosecution,” read the document.
“The prosecution’s request for such information in full awareness of the conditions under which it may be sought and the process preceding it and with the knowledge that this would be in breach of Article 93 of the Statute and hence illegal, is malicious and an attempt to subvert the process of justice by whatever means possible,” says Githu.
The Government has further submitted that the prosecution failed to make a distinction between the Office of the Prosecutor as defined by Article 42 of the Statute and the Court as defined by Article 1 of the Statute, read with Rule 176 of the Rules. The A-G states that the prosecution’s failure to distinguish between the two entities is the genesis of the problem confounding the prosecution in making requests for assistance in the request letter on which the application is based.
Prof Muigai adds: “The prosecution’s allegation that the Government only addressed request for freezing of assets while not addressing the records request is false because it clearly demonstrates that the prosecution was addressed on requests it made, besides that of freezing assets and informed that a court order was required to enable Government provide requested assistance.”
And on April 24, the Chamber granted leave and accepted the substantive parts of the submissions as the Government’s observations for the purposes of Rule 103(1) of the Rules. “The complementarity principle of the Rome Statute with domestic legislation of the requested State is expressly recognised by Article 93(1) of the Statute which requires State Parties to comply with requests by the Court and provide assistance,” Muigai further stated.
He noted that Article 31 of the Constitution guarantees the right to privacy and confidentiality, subject to requirement of reasonableness in an open and democratic society. Githu submits that the right to privacy extends to the protection of information on a person’s property and assets, saying the information sought by the prosecution cannot be provided without violating the rights of the concerned persons as guaranteed by the Constitution.